Caris­sima Ma­then

For a con­sid­er­able span of Canada’s 150 years, con­sti­tu­tional ne­go­ti­a­tions have been the coun­try’s sec­ond na­tional sport. The Con­sti­tu­tion has been a mech­a­nism for peace­ful na­tional eman­ci­pa­tion, a cru­cible of fed­eral-provin­cial ten­sions over the divi­sion

From the BNA Act to the Char­ter: Defin­ing Canada by its Con­sti­tu­tion

It is true that Canada’s sesqui­cen­ten­nial has aroused di­verse emo­tions. The very moniker of the “150th birth­day” has stirred con­tro­versy. Nonethe­less, it is worth not­ing, and ap­pre­ci­at­ing, just what an un­likely an­niver­sary it is.

-In 1867, the Do­min­ion of Canada was formed out of a de­sire for eco­nomic and po­lit­i­cal sta­bil­ity. Lit­tle in its found­ing doc­u­ment, the Bri­tish North Amer­ica Act, por­tended true sovereignty. Monarch, im­pe­rial par­lia­ment, apex court—all re­mained firmly en­trenched in a far-off land. The BNA Act’s most im­por­tant func­tion was to al­lo­cate law-mak­ing pow­ers be­tween two or­ders of gov­ern­ment—fed­eral and provin­cial.

To be sure, the frame­work proved a hardy one. Over the next cen­tury, to the four orig­i­nal found­ing prov­inces it en­abled the ad­mis­sion of six more. It per­mit­ted in­di­vid­ual amend­ments to in­stan­ti­ate na­tional pro­grams like un­em­ploy­ment in­sur­ance. A dis­tinc­tive form of le­gal re­view emerged too, nei­ther Bri­tish nor (yet) in thrall to Amer­i­can ju­di­cial supremacy.

The dis­tinc­tive­ness of the ju­di­cial sys­tem lay partly in the fact that, un­til 1949, Cana­dian courts were sub­or­di­nate to the U.K. Ju­di­cial Com­mit­tee of the Privy Coun­cil. The com­mit­tee tended to pro­tect provin­cial over fed­eral pow­ers. That pro­vided some as­sur­ance to prov­inces, but it ar­guably thwarted the de­vel­op­ment of a na­tional iden­tity. The com­mit­tee’s fre­quent frus­tra­tion of fed­eral aims, such as gut­ting much of R. B. Ben­nett’s New Deal, en­raged crit­ics and height­ened calls to elim­i­nate its con­tin­ued role.

While much of the JCPC’s work has lapsed into ob­scu­rity, some of its de­ci­sions have had pro­found con­se­quences. The most fa­mous is the 1929 Per­sons Case. There, the Com­mit­tee con­sid­ered whether the word “per­sons” in sec­tion 24 of the BNA Act pre­cluded the ap­point­ment of fe­male Sen­a­tors. De­cid­ing that the ques­tion turned on the mean­ing “per­sons” would have had in 1867, the Supreme Court of Canada con­cluded that it did. Over­turn­ing that de­ci­sion, the JCPC de­clared the Act to have planted in Canada a “liv­ing tree” that, within its “nat­u­ral lim­its”, re­quires a “large and lib­eral in­ter­pre­ta­tion”. “To those who ask why the word should in­clude fe­males,” it pro­claimed, “the ob­vi­ous an­swer is why should it not.”

The Per­sons Case en­tailed a par­tic­u­lar vi­sion of the Con­sti­tu­tion: evolv­ing, for­ward-look­ing and lib­eral. The im­pli­ca­tions were dra­matic, es­pe­cially for the con­sti­tu­tion’s pri­mary in­ter­preters. To­day, in terms of sheer power and author­ity, Cana­dian courts have few ri­vals any­where in the world. For crit­ics, that en­hanced sta­tus has come at the ex­pense of demo­cratic le­git­i­macy. But most Cana­di­ans, it seems, view the idea of a ju­di­cial guardian as a source of con­fi­dence, not threat.

The Per­sons Case was an early ex­am­ple of strate­gic lit­i­ga­tion. Its pri­mary movers—Emily Mur­phy and the “Fa­mous Five”—suc­cess­fully lever­aged var­i­ous tools to con­vince the fed­eral gov­ern­ment to put the dis­pute to the court. Theirs was a pow­er­ful il­lus­tra­tion of cit­i­zen en­gage­ment in con­sti­tu­tional de­bate. To­day, such en­gage­ment is both com­mon­place and widely seen as le­git­i­mate. Its im­por­tance has been con­firmed by the courts and, as the re­in­stated Court Chal­lenges pro­gram demon­strates, even ac­cepted by gov­ern­ment.

The con­sti­tu­tional shake-up of 1982 brought forth a new frame­work, the Char­ter of Rights and Free­doms, that for­ever changed the na­ture of con­sti­tu­tional in­quiry. Un­til 1982, con­sti­tu­tional ques­tions were rooted in fed­er­al­ism, which asks which or­der of gov­ern­ment en­joys the power to do some­thing. The key is­sue is one of ju­ris­dic­tion—a law stands or falls

on that ba­sis alone, no mat­ter how dra­co­nian, racist or re­gres­sive it may oth­er­wise be.

Now, the Con­sti­tu­tion de­mands much more. The va­lid­ity of a law de­pends, not just on whether it is ju­ris­dic­tion­ally sound, but on what, pre­cisely, it does and how, pre­cisely, it af­fects the in­di­vid­ual rights that the Con­sti­tu­tion also pro­tects. What is the im­pact of the law on, say, free­dom of ex­pres­sion, or equal­ity rights, or in­dige­nous peo­ples? How does the gov­ern­ment’s choice com­port with “a free and demo­cratic so­ci­ety”? Such ques­tions are deeply con­tested and in­escapably con­tro­ver­sial. But, for the most part, the re­sult­ing jurispru­dence has been broadly faith­ful to the high­est ideals of po­lit­i­cal lib­er­al­ism and democ­racy.

That is not to say, of course, that the coun­try faces no new or con­tin­u­ing chal­lenges. Events in re­cent years have re­vealed nu­mer­ous “pres­sure points”. They will re­quire on­go­ing en­gage­ment, and hard con­ver­sa­tions.

The first chal­lenge is the still-un­der­de­vel­oped re­la­tion­ship be­tween Canada and in­dige­nous peo­ples. No doubt, the re­la­tion­ship has evolved in pos­i­tive ways. Yet, chal­leng­ing is­sues re­main, such as the scope and na­ture of fed­eral re­spon­si­bil­ity, and the prospects for na­tion-to-na­tion ne­go­ti­a­tion. In both ju­rispru­den­tial and po­lit­i­cal terms, the con­stant theme has been one of rec­on­cil­i­a­tion. What rec­on­cil­i­a­tion means, and what it will re­quire from all of us, will dom­i­nate na­tional de­bate for many years to come.

The sec­ond chal­lenge is the largely mori­bund na­ture of for­mal con­sti­tu­tional amend­ment. Fol­low­ing the fail­ures of Meech Lake and Char­lot­te­town, Cana­dian politi­cians have tended to treat con­sti­tu­tional ne­go­ti­a­tions as a po­lit­i­cal third rail. A re­cent sug­ges­tion by Que­bec for re­newed dis­cus­sion was greeted with dis­be­lief and al­most im­me­di­ately panned. But no con­sti­tu­tion is static. Con­tin­ued re­fusal to en­ter the field may avoid im­me­di­ate po­lit­i­cal con­flict, but it can­not evade for­ever the un­der­ly­ing is­sues.

Fi­nally, the Con­sti­tu­tion will con­tinue to con­front dif­fi­cult ques­tions about rights lim­its and rights con­flicts. Re­cent con­tro­ver­sies in­volv­ing free­dom of re­li­gion and gen­der equal­ity, or the nondis­crim­i­na­tion rights of trans­gen­der per­sons ver­sus the ex­pres­sion rights of oth­ers, have led to deep, at times painful, con­flict. Re­lated to that broader is­sue is the notwith­stand­ing clause—a pro­vi­sion that is writ­ten into the Char­ter, and to some ex­tent made it pos­si­ble, but is of­ten re­garded with sus­pi­cion and hos­til­ity. Af­ter be­ing a non-starter for years, the clause in­creas­ingly is in­voked by politi­cians both in word (as seen in the Con­ser­va­tive Party lead­er­ship cam­paign) and in deed (most re­cently, by the pre­mier of Saskatchewan). The con­tours of its le­git­i­macy, and the lim­its to its use, re­main to be seen.

For all the chal­lenges that lie ahead, Cana­di­ans can and should take pride in this mo­ment. If a con­sti­tu­tion de­fines a coun­try, then Cana­di­ans— more than the cit­i­zens of other de­vel­oped na­tions—have demon­strated an un­usual pre­oc­cu­pa­tion with self-au­thor­ship. From the be­gin­ning, there has been hag­gling and fight­ing over what the Con­sti­tu­tion means. The sesqui­cen­ten­nial pro­vides an op­por­tu­nity for Cana­di­ans to re­flect on the na­ture of our con­sti­tu­tional jour­ney thus far, and to chart a course for where we wish to go next.

the Con­sti­tu­tion will con­tinue to con­front dif­fi­cult ques­tions about rights lim­its and rights con­flicts. Re­cent con­tro­ver­sies in­volv­ing free­dom of re­li­gion and gen­der equal­ity, or the non-dis­crim­i­na­tion rights of trans­gen­der per­sons ver­sus the ex­pres­sion rights of oth­ers, have led to deep, at times painful, con­flict.

Li­brary and Archives Canada photo

Prime Min­is­ter Pierre Trudeau looks on as the Queen signs the Con­sti­tu­tion Act with the Char­ter of Rights and Free­doms in front of the Peace Tower, April 17, 1982.